Saturday, December 06, 2008

Abortion Cases - Roe vs. Wade - Court Opinion by Blackmun.

(Second in a series. see first

Abortion -- the unmentionable word

Whether abortion of a quick fetus was a felony at common law, or even a lesser crime, is still disputed. Bracton, writing early in the 13th century, thought it homicide. But the later and predominant view, following the great common-law scholars, has been that it was, at most, a lesser offense. In a frequently cited passage, Coke took the position that abortion of a woman "quick with child" is "a great misprision, and no murder." Blackstone followed, saying that while abortion after quickening had once been considered manslaughter (though not murder), "modern law" took a less severe view. A recent review of the common-law precedents argues, however, that those precedents contradict Coke and that even post-quickening abortion was never established as a common-law crime. This is of some importance because while most American courts ruled, in holding or dictum, that abortion of an unquickened fetus was not criminal under their received common law, others followed Coke in stating that abortion of a quick fetus was a "misprision," a term they translated to mean "misdemeanor." That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of common-law prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as a common-law crime even with respect to the destruction of a quick fetus.

In an ongoing attempt to inform both myself and anyone who cares to follow along, I blog this exerpt from the original Roe v Wade decision as written by Mr. Justice Blackmun in 1973. The language of this important decision provides a framework for any legislative remedy to the swelling numbers and casual acceptance of abortion that has ensued over the last thirty years.

***The phrase "quick fetus" jumps off the page at today's reader. When we run across such language we imagine something from the colonial era, not something composed just thirty years ago. Note the observation that at the time Blackmun was writing there was still some dispute as to whether aborting such a fetus was, in common law, a felony or some lesser crime.

***Citing Bracton, Coke and Blackstone (about which I know nothing), he concludes that aborting any fetus, "quick" or "post-quick", never rose to the level of a serious crime according to common law. The term "misprision" was apparently as new to the vocabulary of readers then as now, since he included "a term they translated to mean 'misdemeanor'."

A current use of the word "quick" with the meaning of "living" survives in some wordings of the Nicene Creed which is recited in many churches. ("...the quick and the dead...)

Read more in Bob Woodward's The Abortion Papers, published in 1989.

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